HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

MACFARLANE AND ANOTHER

(RESPONDENTS)

v.

TAYSIDE HEALTH BOARD

(APPELLANTS)

(SCOTLAND)

ON 25 NOVEMBER 1999

LORD SLYNN OF HADLEY

My Lords,

The relevant facts in this appeal are very few, the legal issue difficult. The facts are that Mr. McFarlane underwent a vasectomy operation on 16 October 1989; by letter of 23 March 1990 he was told that his sperm counts were negative. In September 1991 (following the resumption of intercourse without contraceptive measures), Mrs. McFarlane became pregnant and their fifth child, Catherine, was born on 6 May 1992. They claim that Mrs. McFarlane suffered pain and distress from the pregnancy and birth and that they both have incurred and will incur costs in rearing Catherine, all due to the negligence of the defendant. They put Mrs. McFarlane's claim at £10,000 and their claim as parents at £100,000 for the cost of maintaining the child. It is right to say at once that despite their claim the respondents have loved and cared for Catherine as an integral member of the family.

The Lord Ordinary (Lord Gill) dismissed both claims. He thought that as a matter of principle they were not entitled to damages. The Second Division of the Court of Session unanimously allowed a Reclaiming Motion. They thought that the parties should be allowed a proof before answer that if they could establish negligence they should be given the opportunity to prove the loss, injury and damage which they aver arises directly from the fact that the wife became pregnant.

The Lord Ordinary considered the pregnancy could not be equiparated with a physical injury, but that even if it could it was not an injury for which damages are recoverable. The existence of the child and the mother's happiness derived from it could not be ignored and they outweighed the pain and discomfort. As to the claim for the rearing of the child, his view was that the choice was between (a) allowing full recovery subject to issues of remoteness and (b) allowing no recovery since the value of the child outweighed the cost of maintenance. Limiting recovery to specific heads of claim which were not outweighed by the value of having the child was not acceptable, not least because of the difficulty of valuing the child's existence. His conclusion was that to allow nothing for the benefits the parents received from having a child was wrong in principle, at any rate where a healthy child is concerned:

"I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of the child's existence and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss."

Accordingly, as a matter of principle, damages were not recoverable. On the other hand, "if the benefits to the parents do not extinguish both claims, they should certainly extinguish the claim for the costs of the child's upbringing. To hold otherwise will be to give the pursuers more than compensation." He held that as a matter of principle damages were not recoverable and that claims could not succeed.

On appeal the Lord Justice Clerk said that the claim was for the physical and pecuniary consequences brought in train by the second pursuer's pregnancy and childbirth rather than that the child was "harm" to the parents. As to the claim for pain and distress resulting from the pregnancy and childbirth, they did not have to be seen as "injury" and there was no reason for thinking that the law did not recognise them as damage. To say that was cancelled out by post-natal happiness was not acceptable. As to the costs of rearing a child, he did not accept that these could not result from the defenders' negligence: keeping the child rather than arranging an abortion or an adoption did not break the chain of causation. The parents had to spend extra money because of the defenders' negligence which led to the birth of the child. They were entitled to decide not to have a child. It was unwarranted to assume that the joy of having a child in every case exceeded any monetary claim which might arise. It could not be said that the pursuers could have suffered no loss worthy of compensation. He declined to consider whether public policy prevented the claim from being brought: that was not for the court.

Lord McCluskey said:

"'Damnum' in the context of our law of reparation means a loss in the sense of a material prejudice to an interest that the law recognises as a legal interest. When there is a concurrence of injuria and damnum the person whose legal right has been invited with a resultant loss to him has a right to recover money reparation for that loss for the wrongdoer" (page 42).

In my view it is sufficient to say that a woman who becomes pregnant despite her deliberate choice not to become pregnant suffers damnum and loss in the form of significant consequences for her physical condition, being consequences which she did not desire" (page 47)."

As to whether the joy to be received from the birth of a child cancelled out pain and financial loss he said:

"I know of no principle of Scots law that entitles the wrongdoer to say to the victims of his wrongdoer that they must look to their perspective and impalpable gains on the roundabouts to balance what they actually lose on the swings.

I conclude that the benefits to the parents of having a live healthy child cannot be taken into account under any principle known to Scots law."

He too rejected "public policy" as the criterion for deciding the issue.

Lord Allanbridge accepted that there was injuria. Once the husband was told following the vasectomy that his sperm counts were negative and that he could dispense with contraceptive precautions the damage occurred when the wife became pregnant. His claim therefore arose before the birth of the child. He too thought they should be allowed to prove the loss injury and damage resulting from the fact that the wife became pregnant. The parents' failure to arrange abortion or adoption was not a novus actus interveniens.

The result of the judgment of the Court of Session is that the pursuers should be able to seek to prove full recovery.

Although these judgments refer to the law of Scotland (which obviously was the applicable law) it is as I understand it accepted that the law of England and that of Scotland should be the same in respect of the matters which arise on this appeal. It would be strange even absurd if they were not.

The issues raised in this case - or similar issues arising from other methods of preventing conception and birth - have arisen in cases before the courts of England and Scotland for some twenty years but have not yet been considered by your Lordships. The issues have arisen also in the courts of states of the United States, of the Commonwealth and of other European states. Counsel have referred the House to many of these cases. There is no single universally applied test. Judges have not only said (as here) in some cases all, in some cases nothing can be recovered, they have also said that the award may be for something in- between. It is not necessary to refer to all of these cases but it is in my view of value to examine the trend of decisions in England and Scotland and more briefly to see how the courts of other countries have dealt with this difficult and often emotive matter.

Cases in England and Scotland

In Sciuriaga v. Powell (1979) 123 Solicitors Journal 406 a claim for breach of a contract to terminate pregnancy by abortion, Watkins J. held that the sole reason for the continuation of the pregnancy was the doctor's breach of contract. He awarded damages for pain and suffering and for actual and prospective loss of earnings and for diminution of marriage prospects but he did not award damages for the maintenance of the child. From the short report of the judgment it does not appear whether he was asked to do so.

In Udale v. Bloomsbury Area Health Authority [1983] 1 W.L.R. 1098where a woman's sterilisation failed, a healthy child was born and a second operation performed. Jupp J. accepted that the damages for an admitted liability in negligence should include, in addition to damages for pain and suffering and loss of earnings during pregnancy (which were conceded), damages for "the disturbance to the family finances" such as the cost of a layette, and increased accommodation for the family. On grounds of public policy, however, he rejected a claim for the future cost of the child's upbringing to age sixteen. The considerations of public policy which weighed with him were that it was undesirable that a child should learn that a court had declared its life to be a mistake, the difficulty of setting off the joy of having a child against the cost of rearing, and the risk that doctors might be led to encourage abortion in order to avoid claims against them for medical negligence.

In Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1985] 1 Q.B. 1012 a sterilisation operation had failed and a child was born with congenital abnormalities which required constant medical and parental supervision. On a claim in contract the court held that there was no rule of public policy which precluded recovery of damages for pain and suffering and for maintaining the child. The court took a multiplier of 8 for a child 5 years old at the time of the appeal.

In Thake v. Maurice [1986] Q.B. 644 a vasectomy was performed, the husband was told that contraception precautions were not necessary but a child was born. The claim was brought in contract and in tort. Peter Pain J. found that there was no reason why public policy prevented the recovery of expenses arising from the birth of a healthy child. He awarded damages in respect of the expenses of the birth and the mother's loss of wages but refused damages for the pain and distress of labour holding that these were off set by the joy occasioned by the birth. He did, however, award damages in an agreed sum for the child's upkeep to its seventeenth birthday. The Court of Appeal held that damages should be awarded for pain and suffering "per the majority" in tort rather than contract. The joy of having the child could be set off against the time, trouble and care in the upbringing of the child but not against prenatal pain and distress. For the latter, damages should be awarded.

In Benarr v. Kettering Health Authority [1988] N.L.J. 179 Hodgson J. allowed damages in respect of the future private education of a child following a negligently performed vasectomy since private education was what the child could expect to have in that particular family.

In Allan v. Bloomsbury Health Authority [1993] 1 All.E.R. 651 Brooke J. considered that the earlier authorities showed that if, as a result of negligence in the termination of a pregnancy, a child was born the mother could recover damages for the foreseeable loss and damage which she suffered in consequence. Those damages included (a) general damages for pain and discomfort associated with the pregnancy and birth (less the advantage of not undergoing a termination of the pregnancy); (b) financial special damage associated with (a); (c) economic loss being (i) "the financial loss she suffers because when the unwanted child is born she has a growing child to feed, clothe, house, educate and care for until the child becomes an adult," and (ii) loss of earnings because she has to look after the child. On the other hand, except when a handicapped child is born, the wear and tear on the mother in bringing up a healthy child is generally off set by the benefits derived from bringing a child to maturity. He accordingly awarded as general and special damages £96,631 including the cost of maintaining the child until she was 18, and child-minding costs between the ages of 11 and 14. This judgment was followed by Langley J. in Crouchman v. Burke 40 B.M.L.R. 163 and in Robinson v. Salford Health Authority [1992] 3 Med L.R. 270.

In Salih v. Enfield Health Authority [1991] 3 All E.R. 400the cost of maintaining a child born as a result of an incorrect diagnosis was rejected either because this was not caused by the negligence or because the cost would have been incurred in any event on the birth of at least one more child.

In the Scottish case of Allan v. Greater Glasgow Health Board 1998 S.L.T. 580 judgment of 25th November 1993, Lord Cameron of Lochbroom rejected contentions that public policy considerations prevented a claim for pain and distress of pregnancy and birth, and he awarded damages. He could see no reason why the cost of rearing a child should not in principle be provided for.

"On the other hand I can accept that there matters for which no reparation will be given either because they are so intangible as to be virtually impossible to assess in terms of money, as for instance time and trouble in bringing up a healthy child (as noted by Kerr L.J. in Thake v. Maurice) or so remote and speculative as should be ignored, as for instance, the cost of a wedding as in Allen (page 584). "Either for reject the submission that there is only a general bar to claiming child costs under the ordinary principles of law in Scotland pertaining to assessment of damages all their public policy operates to exclude wholly such costs. The question at the end of the day must be whether what is sort by way of reparation can be regarded as reasonable having in mind the particular circumstances of the particular case."

There has thus been in England and Scotland a trend towards allowing damages both for the pain and distress of an unplanned pregnancy and birth and also for the cost of rearing the child born.

Cases in the United States of America

The approach of courts has varied widely both in the reasoning and in the result. At one end of the spectrum is Szekeres v. Robinson (1986) 715 P. 2d. 1076 where the Supreme Court of Nevada held that there should be no award of damages. The court ruled that the birth of a healthy but unwanted child was an

"event which, of itself, is not a legally compensable injurious consequence even if the birth is partially attributable to negligent conduct of someone purporting to be able to prevent the eventuality of a childbirth" (page 1078) "Our decision simply holds that one cannot recover in tort for such an event, because the constituent element of a negligence tort namely damages, is not present here."

The court left open the possibility of a claim in contract.

At the other end of the spectrum is Lovelace Medical Center v. Mendez 805 P. 2d. page 603. There the Supreme Court of New Mexico, in a failed sterilisation case, said that where the prime motivation for the sterilisation was to conserve family resources

"the Mendezes' interest in the financial security of their family was a legally protected interest which was invaded by Lovelace's negligent failure properly to perform Maria's sterilisation operation (if proved at the trial) and that this invasion was an injury entitling them to recover damages in the form of the reasonable expenses to raise Joseph to maturity" (page 612).

They also accepted that damages should generally be awarded for pain and suffering associated with pregnancy and birth. They stressed that the "'offsetting benefits'" principle applies only to the reduction of damages or the invasion of the same interest as the one that has been found" (page 613). Thus emotional benefits could not be set off against financial detriment arising from the invasion of financial security. The setting-off of emotional benefits against emotional disadvantages although theoretically possible should not be allowed since it would lead to unseemly cases and such litigationwas contrary to public policy.

In between these two ends of the spectrum there are cases where the costs of maintenance have been rejected. Thus in Johnson v. University Hospitals of Cleveland (1989) 540 N.E. 2d. 1370 (Ohio) it was held that parents could only recover damages for the cost of the pregnancy itself and not the expense of rearing an unwanted child. Having considered four theories - no recovery, the valuation of benefits to mitigate damages, limited damages excluding child rearing and full recovery, the court concluded that the limited damages theory was to be adopted partly, as I read it, because to allow child rearing cost would be to invite

"unduly speculative and ethically questionable assessments of such matters as the emotional effect of a birth on siblings as well as parents, and the emotional as well as the pecuniary costs of raising an unplanned, and perhaps, unwanted child in varying family environments". "The extent of recoverable damages is limited by Ohio's public policy that the birth of a normal, healthy child cannot be an injury to her parents".

In Public Health Trust v. Brown F.L.A. A.P.P., (1980) 388 So. 2d 1048the Supreme Court of Florida, in refusing a claim for the cost of rearing a child to a woman alleging a negligently performed sterilisation operation, followed what they saw as the majority of courts in refusing such costs. They said:

"In our view, however, its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. . . . It is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable 'benefits' of parenthood far outweigh any of the mere monetary burdens involved. Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the 'unwanted' child for adoption. On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law."

Although this approach is followed it seems by the majority of state courts in which limited damages are awarded, excluding rearing costs, there is another approach. That is to accept the costs of rearing a child but to set off against those costs the non-financial benefits and joys of the parents in having a child. Thus in Sherlock v. Stillwater Clinic [1977] 260 N.W. 2d. 169, where a claim was brought for the birth of a child following a negligently performed sterilisation of the mother, the majority members of the Supreme Court of Minnesota held, in what they described as "at best a mortal attempt to do justice in an imperfect world", that, after valuing reasonably foreseeable expenses to be incurred in maintaining and supporting and educating the child to maturity, in order to prevent unjust enrichment "the trier of fact will then be required to reduce these costs by the value of the child's aid, comfort and society which will benefit the parents for the duration of their lives." That approach is obviously in conflict with what was said in Lovelace.

The Commonwealth

In Administrator, Natal v. Edouard 1990 (3) S.A. 581in a claim for breach of contract where a sterilisation of the wife did not succeed, it was held, where the sterilisation was performed for socio-economic reasons, that the father could recover for the cost of maintaining the child but he could not recover in contract for the pain and suffering of his wife. In L v. M [1979] 2 N.Z.L.R. 519 Cooke J. in the Court of Appeal in New Zealand expressed the view that the cost of rearing a child did not arise directly or indirectly from the faulty procedure adopted. In Kealey v. Berezowski(1996) 136 D.L.R. (4th) 708 in Canada Lax J. refused damages for the costs of rearing the child.

The difficulty of these issues is highlighted in C.E.S. v. Superclinics (Ausralia) Pty. Ltd. (1995) 38 N.S.W.L.R. 47. There a woman claimed damages for loss of the opportunity to terminate a pregnancy which doctors failed properly to diagnose. The trial judge dismissed the claim since any proposed abortion would have been unlawful. On grounds of public policy Meagher J.A. would have excluded such a claim altogether. It was inherently so difficult to assess the damages on any acceptable basis that the task should not be undertaken. Kirby A.C-J. would have allowed damages both for the pain and suffering associated with the pregnancy and birth and for the costs of rearing the child, but he would have off-set the value of the benefits to be derived from the birth and rearing of the child:

"A set off of nett benefits is something to be assessed by the fact finder in a case against the nett injury incurred. Each case will depend on its own facts. Such question can be safely committed to trial judges or juries" (page 77).

In the result in order to achieve a majority order he agreed with Priestley J.A. that the ordinary expenses of rearing the child should be excluded. Priestley J.A. considered at page 84D:

"The point in the present case is that the plaintiff chose to keep her child. The anguish of having to make the choice is part of the damage caused by the negligent breach of duty, but the fact remains, however compelling the psychological pressure on the plaintiff may have been to keep the child, the opportunity of choice was in my opinion real and the choice made was voluntary. It was this choice which was the cause, in my opinion, of the subsequent cost of rearing a child."

Cases from other European States

In the Common Law of Europe Case books "torts" (edited by Professor W. Van Gerven, Jeremy Lever Q.C. and others (1998)) there is an analysis of cases in the French, German and Dutch courts. I do not set out the detail of these but it seems clear that in these jurisdictions also different courts have taken different views on the difficult legal and ethical issues which arose. It seems to me from this and from a valuable article "Damages for the Birth of a Child" by Angus Stewart Q.C. that the law is still developing and that there is no universal and clear approach. I refer in particular to the cases which are mentioned in pages 88-90 of "Torts" in the German courts where the test to be adopted does not appear to have been finally resolved. On the basis of what is said there the French courts would appear reluctant to award damages for maintenance arising from an unwanted birth. The Hoge Road of the Netherlands in 1997 quashed a decision of the Court of Appeal in a case based on breach of contract and held that compensation could be awarded for the expenses of raising a child born normal and healthy and that these expenses should not be reduced by evaluating the joy of having the child (see pages 161-164).

From this review it is clear that there is a wide range of opinions to consider. None is binding on your Lordships and it must be decided which of these approaches is as a matter of principle to be adopted as a rule of the law of Scotland and England.

My Lords, I do not find real difficulty in deciding the claim for damages in respect of the pregnancy and birth itself. The parents did not want another child for justifiable, economic and family reasons; they already had four children. They were entitled lawfully to take steps to make sure that that did not happen, one possible such step being a vasectomy of the husband. It was plainly foreseeable that if the operation did not succeed, or recanalisation of the vas took place, but the husband was told that contraceptive measures were not necessary, the wife might become pregnant. It does not seem to me to be necessary to consider the events of an unwanted conception and birth in terms of "harm" or "injury" in its ordinary sense of the words. They were unwanted and known by the Health Board to be unwanted events. The object of the vasectomy was to prevent them happening. It seems to me that in consequence the wife, if there was negligence, is entitled by way of general damages to be compensated for the pain and discomfort and inconvenience of the unwanted pregnancy and birth and she is also entitled to special damages associated with both - extra medical expenses, clothes for herself and equipment on the birth of the baby. She does not claim but in my view in principle she would have been entitled to prove compensation for loss of earnings due to the pregnancy and birth. It is not contended that the birth was due to her decision not to have an abortion which broke the chain of causation or made the damage too remote or was a novus actus interveniens. If it were suggested I would reject the contention and I see no reason in principle why the wife should not succeed on this part of the claim.

Whether the parents should be entitled as a matter of principle to recover for the costs of maintaining the child is a much more difficult question. Logically, the position may seem to be the same. If she had not conceived because of the Board's negligence there would not have been a baby and then a child and then a young person to house, to feed and to educate. I would reject (had it been suggested which it was not) that a failure to arrange adoption (like an abortion) was a new act which broke the chain of causation or which made the damage necessarily too remote. There was no legal or moral duty to arrange an abortion or an adoption of an unplanned child.

The question remains whether as a matter of legal principle the damages should include, for a child by then loved, loving and fully integrated into the family the cost of shoes at 14 and a dress at 17 and everything that can reasonably be described as necessary for the upbringing of the child until the end of school, university, independence, maturity?

The discussion in the American cases of the "Benefits Rule" to which I have referred persuades me that it should not be adopted here and it is significant that it has not been adopted in many American states. Of course judges have to evaluate claims which are difficult to evaluate, including assessments as to the value of the loss of a life, loss of society or consortium, loss of a limb or a function. But to do so and to get it even approximately right if little is known of the baby or its future at the time the valuation has to be made is very difficult. It may not be impossible to make a rough assessment of the possible costs of feeding, clothing and even housing a child during the likely period of the child's life up to the age of 17 or 18 or 25 or for whatever period a parent is responsible by statute for the support of a child. But even that can only be rough. To reduce the costs by anything resembling a realistic or reliable figure for the benefit to the parents is well nigh impossible unless it is assumed that the benefit of a child must always outweigh the cost which, like many judges in the cases I have referred to, I am not prepared to assume. Of course there should be joy at the birth of a healthy child, at the baby's smile and the teenager's enthusiasms but how can these put in money terms and trimmed to allow for sleepless nights and teenage disobedience? If the valuation is made early how can it be known whether the baby will grow up strong or weak, clever or stupid, successful or a failure both personally and careerwise, honest or a crook? It is not impossible to make a stab at finding a figure for the benefits to reduce the costs of rearing a child but the difficulties of finding a reliable figure are sufficient to discourage the acceptance of this approach.